Shri H.P. Gupta vs Delhi Administration & Others
2009 Latest Caselaw 2652 Del

*             HIGH COURT OF DELHI : NEW DELHI

           Judgment reserved on : July 08, 2009
           Judgment delivered on : July 16, 2009

+                Writ Petition (C) No. 2551/1991

      Shri H.P. Gupta               ...        Petitioner
                 Through: Mr. G.D. Gupta, Senior Advocate
                          with Mr. S.K. Gupta and Mr.
                          Vikram Saini, Advocates.

                              versus

      Delhi Administration & Others ...       Respondents
                     Through: Mr. S.K. Luthra, Advocate.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be reported
       in the Digest?

SUNIL GAUR, J.

1. In August 1982, Petitioner was working as Assistant

in the office of Vivekanand Mahila College, Vivek Vihar,

Delhi and was maintaining accounts of this college. On 1st

September 1982, a surprise check of the college accounts

was carried out and some shortages/irregularities were

detected and accordingly Petitioner was charge sheeted.

W.P. (C) No. 2551/1991 Page 1 The first charge against the Petitioner was that a shortage

of Rs.41/- was detected in the cash balance of the account

of this school and the second charge against him was that

there was a shortage of Rs.989.67 p in the accounts of

Alumini Association of the School. The third charge against

the Petitioner was that he had accepted the fee from three

students without verifying the results. The last charge, i.e.,

the fourth one against the Petitioner was of accepting the

fee from a student-Kamlesh Kumari, on 16th August 1982,

while it was shown in the record that the fee from this

student was received on 13th August 1982 itself.

2. The aforesaid charges were inquired into by the

Inquiry Officer and during the inquiry, the school Principal,

the Section Officer (Accounts) and School teacher - Ms.

Pritinderjeet had deposed in support of the aforesaid

charges and the Inquiry Officer concluded the inquiry and

had found that the aforesaid charges, as contained in

charge sheet of 21st March, 1982 stood proved against the

Petitioner and on 20th March, 1985, vide memorandum

(Annexure P-1), the Governing Body of the Respondent -

School, i.e., Respondent No. 4 accepted the Inquiry Report

W.P. (C) No. 2551/1991 Page 2 and had inflicted the punishment of "dismissal from

service" upon the Petitioner.

3. The aforesaid order of Dismissal (Annexure P-1) was

assailed by the Petitioner by preferring the statutory

appeal and the Appellate Authority vide order of 17th April

1989 concluded that the first charge of misappropriation

of college funds was not proved. However, it was found by

the Appellate Authority that the Petitioner was somewhat

careless in handling the cash. Even the second charge of

misappropriation of Alumini Association was not found to

be proved. But it was concluded by the Appellate Authority

that the handling of the college fund account by the

Petitioner had left „much to be desired‟. The third charge

of accepting fee from three students without verifying

their results stood established, as per the finding returned

by the Appellate Authority. In respect of the fourth charge,

the Appellate Authority found that Petitioner had made

wrong entry in the School Record with a view to favour the

concerned student - Kamlesh Kumari. As per the

order/Report of the Appellate Authority, the first and the

second charges were not fully proved, whereas, third and

fourth charge, as aforesaid, stood proved against the W.P. (C) No. 2551/1991 Page 3 Petitioner and on the quantum of sentence, the Appellate

Authority found that the termination of services of the

Petitioner was too severe and substituted the punishment

with the penalty of "compulsory retirement" from the

service, from the date of termination of his service.

However, it was said by the Appellate Authority that the

Petitioner would be entitled to retrial benefits under the

Rules.

4. The Governing Body of the school, i.e., Respondent

No. 4, on the basis of the order of the Appellate Authority,

conveyed to the Petitioner vide letter (Annexure P-2) that

the Petitioner has been treated as compulsorily retired

from the service in the college with effect from 20th March,

1985 and the retrial benefits were offered to him vide this

letter, on 15th June 1989.

5. In this petition, Petitioner is challenging the order of

the Appellate Authority vide which he has been

compulsorily retired. The principle stand taken by the

Petitioner in this petition is that there is no cogent or

legally permissible evidence against the Petitioner and the

charges levelled against the Petitioner do not stand

W.P. (C) No. 2551/1991 Page 4 proved and that the Inquiry Officer was an interested

party and despite repeated requests, the Inquiry Officer

was not changed.

6. The plea of the Petitioner is that Respondent No. 5,

i.e., the school Principal was biased against the Petitioner

as the Petitioner had pointed out the irregularities

committed by the school Principal and in an Inquiry, he

had deposed against the school Principal and therefore,

the school Principal had nursed a grudge against the

Petitioner. The relief sought in this petition is of quashing

of the order of 15th June, 1989 of the Appellate Authority

and of reinstatement of the Petitioner with consequential

benefits.

7. Counter affidavit was filed by Respondent No. 4 to 6

to this petition, justifying the order of Appellate Authority

and repelling the averments made in the Writ Petition, of

the school principal being biased or prejudiced against the

Petitioner. It was also refuted that the Inquiry Officer was

an interested party.

8. Rejoinder to the counter affidavit of the contesting

Respondents was filed by the Petitioner reiterating the

stand taken in the Writ Petition.

W.P. (C) No. 2551/1991 Page 5

9. In "Union of India and Another vs. K.G. Soni", 2006

SCC (L&S) 1568, Apex Court has highlighted the scope of

judicial review of the administrative decision making

process in the following words:-

"The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.

To put differently, unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations, it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly W.P. (C) No. 2551/1991 Page 6 disproportionate, it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed."

10. After having heard learned counsel for the parties

and upon careful perusal of the record of this case and the

judgments cited, I find that in the case of no evidence or

where the findings are found to be perverse or not based

on legally permissible evidence, the punishment inflicted

in the departmental proceedings are liable to be set aside.

However, I find that the Inquiry Report is a detailed one

and it is based upon the evidence of the school Principal,

the Section Officer (Accounts) and the school Teacher in

question. The Appellate Authority, vide impugned order,

has applied its mind to the charges framed against the

Petitioner and had found that the first two charges of

embezzlement of college funds do not stand proved.

However, it was found by the Appellate Authority that the

Petitioner was found to be careless in handling the cash

and the handling of the college fund account by the

Petitioner leaves much to be desired.

11. So far as the third and fourth charges against the

Petitioner are concerned, the Appellate Authority has re-

W.P. (C) No. 2551/1991 Page 7 appraised the evidence and has found that these two

charges, reflecting upon the integrity of the Petitioner,

stood proved against him and since the main charge of

embezzlement of the college funds was not found to be

proved against the Petitioner, therefore, the penalty

imposed upon the Petitioner was scaled down from

„dismissal‟ to one of „compulsory retirement‟ from the

service.

12. In the case of "Kuldip Singh vs. Commissioner of

Police and Others", reported in JT 1998 (8) SC 603, the

scope for interference with the findings of facts recorded

in the departmental proceedings have been highlighted by

the Apex Court in the following words:-

"It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the W.P. (C) No. 2551/1991 Page 8 Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority."

13. Copy of the evidence of Section Officer (Accounts)

R.C. Grover (PW-3) is on record and upon its bare perusal,

it can be unhesitatingly said that by no stretch of

imagination, it can be concluded that the present case is

of no evidence. The stand now taken by the Petitioner of

present case being of no evidence or of the Inquiry Officer

being an interested party were never raised before the

Appellate Authority, as is evident from the impugned order

(Annexure R-1). It is not the case of the Petitioner that the

pleas of present case of being no evidence or of finding of

the Inquiry Officer being perverse or of Inquiry Officer

being interested party or of the school Principal being

prejudiced against the Petitioner were taken before the

Appellate Authority and the same were not considered. It

is a matter of record that the Appellate Authority

comprises of two former Chief Justices; one of this Court W.P. (C) No. 2551/1991 Page 9 and the other one of Himachal Pradesh High Court and a

former Secretary to the Election Commission and upon

perusal of the order of the Appellate Authority, I find that

no fault can be found with it and the impugned order is

well-reasoned one and it justifies the imposition of the

penalty of compulsory retirement imposed upon the

Petitioner.

14. Although, it has been claimed by the Petitioner that

the Inquiry Officer was close to the school Principal, but it

is not in dispute that the Inquiry Officer was not appointed

by the school Principal but was appointed by the

Governing Body of the Respondent - School. Therefore, it

cannot be reasonably said that the Inquiry Officer was an

interested party.

15. As far as the question of prejudice or malice is

concerned, no such allegations have been levelled against

the Appellate Authority, who has independently applied its

mind to the facts of this case and has exonerated the

Petitioner of two charges out of the four charges levelled

against him. In somewhat similar case of "L.K. Verma vs.

HMT Limited and Another", AIR 2006 SC 975, the Apex

W.P. (C) No. 2551/1991 Page 10 Court had dealt with the malice/prejudice aspect in the

following words:-

              "The       contention    of    Mr.   Desai     that     the
              disciplinary    proceedings      were    actuated        by

malice cannot be accepted for more than one reason. As noticed hereinbefore, the Appellant himself accepted that he was in tense mood while attending the prima facie enquiry. The Enquiry Officer while holding the Appellant

exonerated him in respect of Charges No. 1 and

3. Had the action of the Management and the disciplinary authority were actuated by malice, the Appellant would not have been exonerated on two very serious charges. Furthermore, when a charge has been proved, the question of exonerating the Appellant on the ground of purported malice on the part of the Management does not arise. Evidently, the disciplinary authority was not biased against the Appellant nor any malice has been attributed to him. The contention is rejected."

16. Upon careful perusal of the material on record in its

entirety, this court finds that the impugned order of the

Appellate Authority does not suffer from any material or

procedural irregularity nor can be said to be biased. It can

W.P. (C) No. 2551/1991 Page 11 neither be said that there is no evidence in support of the

charges found to be proved against the Petitioner. No case

for invoking the writ jurisdiction is made out.

Consequently, this petition fails and is hereby dismissed.

17. Parties are left to bear their own costs.

                                                     SUNIL GAUR, J

July 16, 2009
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W.P. (C) No. 2551/1991                                           Page 12